Frank Igwebuike ENWONWU, Petitioner, v. Alberto R. GONZÁLES, Attorney General, Respondent.
No. 06-2457.
United States Court of Appeals, First Circuit.
May 10, 2007.
Affirmed.
Andrew C. MacLachlan, Ernesto H. Molina, Jr., and Peter D. Keislser on brief for respondent.
Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.
PER CURIAM.
This is Frank Igwebuike Enwonwu‘s second petition for review of a determination by the Board of Immigration Appeals (“BIA“) that he is ineligible for relief under the Convention Against Torture (“CAT“).1 In Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir.2006) (”Enwonwu I“),2 we dismissed Enwonwu‘s constitutional claims but remanded his claim for CAT relief to the BIA for “further consideration ... in light of its failure to address the second ground in the IJ‘s decision,” id. at 35, i.e., that Enwonwu would likely be tortured in retaliation for his cooperation with the Drug Enforcement Administration (“DEA“) in their investigation of other Ni-
I.
Before addressing Enwonwu‘s challenges to the BIA‘s decision, we dispose of several of those challenges on other threshold grounds identified by the respondent.
A.
First, we agree with the respondent that Enwonwu failed to exhaust his administrative remedies before the BIA with respect to two of the issues that Enwonwu raises here; consequently, we will not consider those issues. See Boakai v. Gonzales, 447 F.3d 1, 4-5 (1st Cir.2006). Those issues are (1) whether the case should be remanded to the BIA for reconsideration of its rejection of the IJ‘s first rationale for finding it likely that Enwonwu would be tortured if returned to Nigeria, i.e., that he would be detained in a Nigerian prison because he had been convicted of a drug offense in the United States,3 and (2) whether Enwonwu was obliged to “provide evidence that he ... would be singled out individually” for torture.4
B.
We also agree that another of Enwonwu‘s arguments is barred by this court‘s decision in Enwonwu I. The argument is that his removal would impermissibly deprive him, retroactively, of his “vested rights” under his confidential informant agreement. Although the respondent frames this bar as one of “claim preclusion,” it fits more comfortably into the doctrine of law of the case.
Under the relevant branch of that doctrine, “a legal decision made at one stage of a civil or criminal proceeding ... remain[s] the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court. That branch binds ... a successor appellate panel in a second appeal in the same case....” United States v. Moran, 393 F.3d 1, 7 (1st Cir.2004); see also Ellis v. United States, 313 F.3d 636, 646-47 (1st Cir.2002) (explaining the “salutary poli-
It makes no difference whether the “vested rights” argument that Enwonwu makes in his present petition is identical to or a variation on the substantive due process argument that was raised and rejected in Enwonwu I, 438 F.3d at 29-31. Either the argument was previously raised and rejected in his first petition, or it could have been raised there but was not. Either way, the law of the case doctrine precludes Enwonwu from making this argument in this second petition.
II.
We will discuss Enwonwu‘s remaining challenges to the BIA‘s decision on remand.
A.
In Enwonwu I, this court remanded Enwonwu‘s petition for review of the denial of his CAT claim to the BIA to address the IJ‘s alternative finding that retribution would be sought against Enwonwu because of his cooperation with the DEA. Enwonwu I, 438 F.3d at 35. On remand, the BIA provided the missing explanation. But in its resulting order, it mistakenly said that “[t]he respondent‘s [i.e., Enwonwu‘s] appeal is dismissed.” In fact, it was the DHS (or its predecessor, the Immigration and Naturalization Service) that had appealed to the BIA from the IJ‘s decision in Enwonwu‘s favor, so the order should have said that the DHS‘s appeal is sustained, as did the BIA‘s original order.5
In his brief to this court, Enwonwu points to that error as “[t]he most glaring indicator of the continued arbitrary nature of the BIA‘s adjudication of this case on remand.” The error was not substantive, since the body of the original decision clearly indicated that the BIA intended to rule in DHS‘s favor. The BIA‘s inadvertent use of the opposite language hardly rises to the level of a constitutional due process violation, particularly given the absence of any prejudice to Enwonwu and the BIA‘s prompt correction of its error. See Ibe v. Gonzales, 415 F.3d 142, 144 (1st Cir.2005).
B.
Somewhat paradoxically, Enwonwu next claims that the BIA‘s correction of its order to say that the DHS appeal was sustained also constituted “a serious violation of [his] due process rights.” As to how the correction was made, the record indicates only the following: After Enwonwu pointed out the error in one of his many attempts to obtain a stay of removal pending appeal, the BIA amended its order, “upon [its] own motion,” to read, “The DHS appeal is sustained.” The amended decision also added—presumably in response to Enwonwu‘s further argument that there was no removal order in effect —an explicit order that “[t]he respondent is ordered removed from the United States to Nigeria.” In all other respects, the amended decision “incorporat[ed] by reference the text of the attached vacated order,” i.e., the original decision.
According to Enwonwu, “The only reasonable conclusion that can be drawn [from that sequence of events] is that the BIA was alerted to the error in its prior
There are several problems with this due process claim, the first of which is the absence of any concrete evidence in the record to rebut the BIA‘s own statement that the correction was made “upon the Board‘s own motion” or the presumption of regularity that attaches to the BIA‘s official acts. McLeod v. INS, 802 F.2d 89, 95 n. 8 (3d Cir.1986); see generally Giordano v. Fair, 697 F.2d 14, 17 (1st Cir.1983). There is no evidence that the alleged contact even occurred. See United States v. Ames, 743 F.2d 46, 48 (1st Cir.1984).
Second, even if such contact occurred, it would not necessarily be impermissible. Rather, under the Administrative Procedure Act, the only ex parte communications that are prohibited are those “relevant to the merits of the proceeding.”
Third, Enwonwu has not made the requisite showing that he was prejudiced by communication of the error, which he himself had already pointed out in a pleading of public record. Absent such a showing a prejudice, even an impermissible ex parte communication does not violate due process. United States v. Nelson-Rodriguez, 319 F.3d 12, 62 (1st Cir.2003); In re Pearson, 990 F.2d 653, 661 (1st Cir.1993).
C.
Next, Enwonwu argues that the BIA had no authority to enter a removal order “in the first instance.”6 The factual premise of that argument is mistaken since Enwonwu‘s removal order was entered initially by the IJ, not the BIA. Since Enwonwu‘s argument is based on this mistaken premise, we need not reach the issue of whether the BIA would have authority to issue a removal order where the IJ had not ordered removal, or at least made a determination of removability, in the first instance.
D.
Next, Enwonwu faults the BIA for declining to rely upon the district court‘s factual findings in Enwonwu v. Chertoff. As Enwonwu implicitly acknowledges by arguing that the BIA should have taken administrative notice of those findings, absent taking such notice, the BIA was powerless to adopt them. See
His arguments that the applicable regulations or due process required the BIA to take such notice are unavailing. First of all, we doubt that the district court‘s advisory opinion is an “official document” that the BIA is authorized to notice under
E.
Finally, Enwonwu paradoxically shifts from arguing that the BIA should have considered the district court‘s findings to arguing that the BIA was bound by the factual findings of the IJ based on the record before him. Consonant with the directive that the BIA “not engage in de novo review of findings of fact determined by an immigration judge,”
In sum, all of Enwonwu‘s challenges to the BIA‘s decision on remand are either procedurally barred or without merit or both. Accordingly, the petition is denied. See 1st Cir. Loc. R. 27.0(c).